Is Canada’s proposed Clean Electricity Standard constitutional?

Today, the Minister of Environment and Climate Change, the Honourable Steven Guilbeault, launched consultations to develop Canada’s Clean Electricity Standard (CES) intended to drive progress towards a net-zero electricity grid by 2035. Work on clean electricity, the Minister says, will also be key to reaching Canada’s ambitious and achievable emissions reduction target of 40 to 45 percent below 2005 levels by 2030 and net-zero emissions by 2050.

The announcement notes that development of a Clean Electricity Standard must be a collaborative process between the federal government, provinces, territories, Indigenous groups, utilities, industry, and interested Canadians. This inclusive approach, it suggests, supports the competitiveness of the economy by providing a clear basis for provinces and territories to plan and operate their grids, while continuing to deliver reliable electricity to Canadians and keeping costs for households and businesses affordable.

Laudable though the objectives may be, we have to wonder whether this is an area that falls within the federal government’s legislative competence. In short, notwithstanding the “collaborative process” within provinces and others, is it a matter of national concern that meets the requirements laid down by the Supreme Court of Canada (SCC) in Crown v Zellerbach?

Although the SCC found last year in SCC Reference that the federal government’s Greenhouse Gas Pollution Pricing Act was a constitutional regulatory scheme to combat climate change, we have to wonder whether regulating the grid beyond interprovincial and international transmission lacks the requisite national quality and is an incursion too far into traditional provincial legislative jurisdiction.

It remains to be seen whether the Provinces will seek to oppose this endeavour by the government and challenge any legislation that emerges from it.

The government invites those interested to submit comments on the Clean Electricity Standard discussion paper by April 15, 2022.

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Manning Environmental Law is a Canadian law firm based in Toronto, Ontario. Our practice is focussed on environmental law, energy law and aboriginal law. 

Paul Manning is a certified specialist in environmental law. He has been named as one of the World’s Leading Environmental Lawyers and one of the World’s Leading Climate Change Lawyers by Who’s Who Legal. Paul is also ranked by Lexpert as one of Canada’s Leading Practitioners in Environmental Law.

As always, these posts  are provided only as a general guide and are not legal advice. If you do have any issue that requires legal advice please get in touch. Our contact details can be found here

This entry was posted in Climate Change, Constitutional Law, Environment, Environmental, federal environmental regulation, Uncategorized and tagged . Bookmark the permalink.

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